June 19, 2008

Here's the statement Barack Obama made yesterday about the Guantanamo detainees:

By any measure, our system of trying detainees has been an enormous failure. Over the course of nearly seven years, there has not been a single conviction for a terrorist act at Guantanamo. There has been just one conviction for material support for terrorism. Meanwhile, this legal black hole has substantially set back America’s ability to lead the world against the threat of terrorism, and undermined our most basic values. Make no mistake: we are less safe because of the way George Bush has handled this.

My approach is guided by a simple premise: I have confidence that our system of justice is strong enough to deal with terrorists; Senator McCain does not. That is not the same as giving these detainees the same full privileges as Americans citizens. I never said that, the Supreme Court never said that, and I would never do that as President of the United States. So either Senator McCain’s campaign doesn’t understand what the Court decided, or they are distorting my position.

So he's talking about what he isn't saying I'd like him to be clear about what he is saying. He won't give them "full privileges," but what portion of privileges does he favor? (And why is he saying "privileges" and not "rights"?)

I have made the same arguments as Republicans like Arlen Specter, countless Generals and national security experts, and the largely Republican-appointed Supreme Court of the United States of America – which is that we need not throw away 200 years of American jurisprudence while we fight terrorism.

Ugh. Tricky rhetoric. We are having an argument about what American jurisprudence dictates. It's a difficult question, and the people who disagree with Obama — such as the dissenters in Boumediene — don't favor throwing out "American jurisprudence." (And why is he saying "American jurisprudence" and not "the Constitution"?)

We do not need to choose between our most deeply held values, and keeping this nation safe. That’s a false choice, and I completely reject it.

Fine, but again, he is having an argument with people who are not proposing throwing away "deeply held values" for national security. He is defining and balancing these things differently from the way they do, and I wish he'd be more precise about what his plan is rather than simply asserting that he will be able to harmonize competing interests so that everything works out just fine.

***

Feel free to point me to more information on the precise subject. I spent some time reading the official Obama website looking for material on the detainees. It is not one of the topics on the "issues" menu, and I can't see a way to run a search for particular words.

Statement around Guantanamo? When I hear "around" used like that, I get nervous. Isn't it a signal that the speaker is going to be cagey?

The question is whether or not, as the Supreme Court said, people who are being held have a chance to at least suggest that, hey, you've got the wrong guy, or I shouldn't be here. It's not a question of whether or not they're freed. And the simple point that I was making, which I will continue to make throughout this campaign, is that we can abide by due process and abide by basic concepts of rule of law and still crack down on terrorists. The fact that you are allowing habeas does not necessitate that you are suddenly putting terrorists in a full US trial court. That's not... Those two things aren't equivalent.

Again, he's saying what his position isn't and not what it is. But, then, he is saying "due process," which suggests that he's talking about constitutional rights. But he holds back from saying that the detainees would be treated to a full-scale criminal trial. The question, presumably, is: What process is due? What rights can they enforce? And he doesn't tell us. So allowing the detainees to petition for a writ of habeas corpus doesn't necessitate a full-scale criminal trial (sudden or not). Fine. True enough. It's not necessarily going to be that way, but is it?"Those two things aren't equivalent," yes, but habeas is the first step, so what do you think is the next step?

Here's how Rush Limbaugh reacts to that Obama statement:

Does anybody have any idea what he said there? Again, illustrating my point: Get this guy off the teleprompter or without some prepared notes, and he's wandering aimlessly for syllabic combinations that will equal a cogent, salient thought. I think the last thing that he said here is really what he was angling at trying to say. "Just because you're allowing habeas [corpus] doesn't necessitate that you're suddenly putting terrorists in a full US trial." Oh, it doesn't? Well, then why are we going to have to take them out of Club Gitmo, sir? And why are we going to have to bring them to the US court system and grant them lawyers? You don't think those lawyers are going to go straight to court? And when they go straight to court with habeas corpus, doesn't it mean, Senator, that they are presumed innocent?

I'm inclined to say Rush is wrong, but I note that he's only asking a series of questions, so I can't. I'll have to say that, ironically, Rush is a bit like Obama, wandering aimlessly for syllabic combinations that will equal a cogent, salient thought. Both men mesmerize their listeners and move them along on a current of verbiage.

I suspect that Rush's asking those questions caused millions of listeners to believe that Obama wants all the detainees to have full-scale criminal trials. Now, I'd like to hear Obama clearly say what he does want — not what things don't necessarily mean and so forth — what he actually wants.

I wish he'd be more precise about what his plan is rather than simply asserting that he will be able to harmonize competing interests so that everything works out just fine.

I am becoming increasingly aware that what we're going to have in Obama is just another John Kerry. Real good at talking about what he's NOT going to do, but utterly clueless and/or unwilling to talk about what he is going to do.

Good luck finding precise statements on much of anything Obama has to say, though I applaud your efforts. His campaign is built on flowery rhetoric, not clear factual statements. And the ground is constantly shifting. His wandering "position" on the Iraqi conflict is a classic political shuffle.

This issue is no different. Turns out, "change you can believe in" mostly means Obama's vague opinion du jour. He readdresses a point only when he gets called on it, and continues with the verbal dance steps only until the spotlight gets turned away. Don't count on the media to notice the evasive repetitive behavior.

Key Obama themes:

1. What I really meant was...2. It was a staffer error.3. He/they did too!

Pogo, as callous as this may sound, isn't it so that the people who want to handle this as a law enforcement exercise live in the cities that are the prime targets for the next attack? And so, isn't this a self-correcting problem, for the most part?

The reason he is saying "privileges" is because that is the word that is used in Article 1, section 9 of the U.S. Constitution: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

I think he is being very subtle (and smart) about his defense of the recent decision on the detainees.

We should "detain" these prisoners of the war on terror until the war on terror is over.

Why? because it is likely that our judicial system will botch the effort in trying to convict them. They are not standard criminals. They are lower level war criminals. They are in effect prisoners of war who violated the rules of war. In past conflicts they would simply be shot or hung at the neck.

After we botch their trials and they are released (because we are so stupid) we need to make sure there is no war left for them to return to.

Obama is a fool. He would demand prosecution of these prisoners. Then there would be failure. Then release. Then the released prisoners would blow up innocent children in a school in Iraq.

It's a difficult question, and the people who disagree with Obama — such as the dissenters in Boumediene — don't favor throwing out "American jurisprudence." (And why is he saying "American jurisprudence" and not "the Constitution"?)

I see this talking point yesterday by a couple of Republicans, and it doesn't really get any more intelligent the more you repeat it. Eric Rudolph was on the FBI's 10 most wanted list in 1998 and wasn't tried and convicted until 2003, BECAUSE WE HADN'T CAUGHT HIM YET. When or if we catch Osama, I'm not sure that the "Chewbacca defense" isn't really going to help him escape the death penalty at this point if he's put on trial in whatever legal proceedings are decided upon.

Does Obama think we should triple the size of the judiciary branch to handle the case load from an newly extended jurisdictional boundary? One of the overriding principles of our justice system, and which is a concern in any ruling made, is judicial economy. What if we extended the federal courts’ reach to coincide with the outer boundary of the reach of the military, so that if the military are in Afghanistan, the US courts have jurisdiction there too?

Conceptually, I’m fine with the entire world having our protections and rights under the constitution. But I’m not sure the rest of the world would think our courts having jurisdiction in their territorial domain would substantially improve America’s ability to lead the world against the threat of terrorism.

Further, since we seem so concerned with how the world thinks of us: I’d like to see how the German or French or British court would decide this case. They basically hide under our military umbrella, so we get these cases of first impression, but how would their courts handle the issue if they had to do the heavy lifting of protecting us and everyone else?

Is it just me, or does Obama's and the Supreme Court's decision seem even more dismissive of the sovereignty of other nations than Bush's?

We have POW's, detainees, or what have you, because they were making war on us, and our choices were a) kill them, or b) lock them up until the cessation of hostilities. We chose option b because we're nice people. But from a criminal standpoint, these people didn't do anything wrong. They aren't part of our social contract, they're not criminals, they're enemies.

But it seems like what the SC is saying, and Obama is agreeing with, is that everyone, anywhere in the world, is bound by our laws; that attacking us is somehow a criminal offense. I don't buy that; we're not that special.

Gee Ann, for someone who steadfastly refuses to express her own opinion on this issue (how is the reading of the case going--or are you just too busy taking pictures of pretty libraries and critiquing M.O.'s appearance on The View), you sure get bent out of shape when others don't clearly state their opinions.

But what it seems to me is that Obama is saying that we should do what the JAG corps suggested we do when we first started capturing these people--determine their status under established procedures that comport with the GC and UCMJ and then try them under the existing UCMJ. This does not mean that the detainees would get the full rights and privileges that a soldier or even a legitimate POW would get under a courts martial, but it would be much more fair than the flawed and patently unjust, illegal, and unconstitutional system that the administration has established.

In an America that is nervous and discontent - primarily because it is continually told by an omnipresent news media that America is discontent - the intelligence guotient of it's voting populace has been lowered. People are just plain tired of bad news. The American public wants a political savior. "He speaks so well" say the masses ("It's so Beautiful!" said Belloq when looking into the Ark of the Covenant in the first Indiana Jones film. Then, having let his guard down to get what he thought he wanted, Belloq exploded.) But there are some listeners not lulled into the national trance. Not giving in to the incredible peer pressure, these thinkers stand up and point at the Great Speaker say "Look! He's not wearing any clothes!"

Barack Obama has no clothes. EE-I-EE-I-O

But alas, it may be too late.

Parse and study over Obama's "meaning" all you want, Professor.

Barack Obama does not want to commit to anything. He will continue to be as vague as possible, all while peppering his speeches with meaningless phrases such as "Let me be clear" while being absolutely not one iota clearer. Barack will continue on his current path, which includes crying about the need for change, all the while playing the old school attack machine. He will continue to misrepresent and lie about his opponent, Senator McCain, then have the "audacity" to deny through his spokespeople that he ever did such a thing. He will change the subject whenever confronted.

The difference between a hope-inspiring President, like Reagan, and a talk-about-"hope" wannabe like Obama is in one word: policy. Reagan had a mountain full of distinct policies. Policies are where the rubber meets the road. Policy is how things actually get done in America. You may not have agreed with Reagan's policies – you may have hated them – but you were still able to be inspired about America.

In contrast, Obama has given no distinct policies to back up any of his rhetoric. His latest speeches, like this one and his latest speech on the economy, have nothing concrete. No real policy. He has to fudge the details, or risk disappointing large sections of the voting public. He is man obsessed with leaving as much wiggle-room as possible. Such a man used to be described as "having no backbone".

There has never been a sadder time in the last 50 years than this day. America is actually considering electing a guy with no previous record of any accomplishment to the most important job in the world on the basis of how sweet he speaks and his willful ability to be all things to so many people.

I'm confused. Can we try people in US courts but not give them the full privileges normally available in those courts?

I still contend that if we are going to give non-citizen war criminals all the "privileges" and protections of citizens we should give them all the duties and responsibilities as well otherwise there is no "privilege" in being a United States citizen.

Joe Veenstra said..."The reason he is saying "privileges" is because that is the word that is used in Article 1, section 9 of the U.S. Constitution: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." I think he is being very subtle (and smart) about his defense of the recent decision on the detainees."

Good point. How do you explain "full privileges"? What does that mean? I understand that that he agrees with the majority in Boumediene -- a case I am going to write in more detail about soon -- but that establishes that they can petition for a writ of habeas corpus. So they have that privilege (because it hasn't been suspended). Then, the question becomes what rights can they enforce through the writ? This is why I'm interested that he didn't say rights. He's hedging, it seems.

Paul Zrimsek said..."'It's a difficult question, and the people who disagree with Obama — such as the dissenters in Boumediene — don't favor throwing out "American jurisprudence." (And why is he saying "American jurisprudence" and not "the Constitution"?)' Good question, considering that the majority in Boumediene does not even claim to be following 200 years of American jurisprudence."

That's right. Kennedy goes through the history only to conclude that it doesn't resolve the question and pragmatic balancing is needed.

Quayle said..."Does Obama think we should triple the size of the judiciary branch to handle the case load from an newly extended jurisdictional boundary? One of the overriding principles of our justice system, and which is a concern in any ruling made, is judicial economy. What if we extended the federal courts’ reach to coincide with the outer boundary of the reach of the military, so that if the military are in Afghanistan, the US courts have jurisdiction there too?"

I would guess that he's only going as far as the Supreme Court and making the extension to Guantanamo, but it would be nice to pin him down.

Freder Frederson said..."Gee Ann, for someone who steadfastly refuses to express her own opinion on this issue (how is the reading of the case going--or are you just too busy taking pictures of pretty libraries and critiquing M.O.'s appearance on The View), you sure get bent out of shape when others don't clearly state their opinions."

Sorry, but since I don't have a ready-made ideological position to spit out, I need to spend real time absorbing what is a long complex opinion. I think it's a very difficult question, and I'm not going to take the side I wish is true. (In fact, I would find it very difficult to decide what I wish is true.) I'm not going to write about it until I have something worthwhile to say. Excuse me if I go about with my other affairs before I post about a case that came out last week. You know in the old days, legal scholars would take a year to figure out a case.

With advice from the likes of future NSA advisor and former SecNav Richard Danzig under Clinton, BO is in way over his head. Danzig references Winnie the Pooh and Luke Skywalker as advice on prosecuting the War On Terror.

You can't make this stuff up. Let the force be with you in the 100 acre wood, Barack.

It would be fine with me if you gave your opinion as you see things now then change it later when you've had more time and the as the situation develops. If it's good enough for a presidential candidate, it should be good enough for you. As for myself, I'm counting upon the opinions of those smarter and better informed than myself. I seem rather stuck in learning mode.

Being able to challenge your detention in front of a neutral judge will result in lost cities? I see this mentioned every time this subject comes up - can someone connect the dots on exactly how this could happen for this old dhimmi?

I see this talking point yesterday by a couple of Republicans, and it doesn't really get any more intelligent the more you repeat it. Eric Rudolph was on the FBI's 10 most wanted list in 1998 and wasn't tried and convicted until 2003, BECAUSE WE HADN'T CAUGHT HIM YET.

Well the difference was the FBI was actively looking for Rudolph whereas Osama was safe and secure in the fact that Clinton wasn't actively looking for him. Therein lies the difference.

"Moreover, Washington is apparently too obtuse to notice that Saddam Hussein, al Qaeda's terrorists, Tehran's mullahs, and Saudi Arabia's Wahhabi clerics have called for a militant brand of jihad persistently over the past several decades. All of these parties know how their words will be interpreted by the Muslim masses, and no fiat from the Washington bureaucracy will undo this widely accepted meaning. " Tom Joscelyn

"This jihadist ideology motivated Abdel Rahman and the 9/11 jihadists, and continues to motivate Islamic terrorism today. But, then and now, this obvious traditional belief is ignored or rationalized away by those entrusted with our security: The secretary of state publicly croons that Islam is the “religion of peace and love,” and the State and Homeland Security departments instruct their employees not to use words like “jihad” or “mujahedeen” (holy warrior) in their communications.

In contrast to this delusional thinking, [Andrew] McCarthy bluntly, and correctly, states the obvious: “Islam is a dangerous creed. It rejects core aspects of Western liberalism: self-determination, freedom of choice, freedom of conscience, equality under the law.” We refuse to face the truth about Islam, and thus we disarm ourselves before “a doctrine that rejects our way of life and a culture unwilling or unable to suppress the savage element it breeds wherever it takes hold."Bruce Thornton

(And why is he saying "American jurisprudence" and not "the Constitution"?)

Because he has a fairly sophisticated understanding of how constitutional law works. In a basketball game, it doesn't really matter whether you foul or not. What matters is what the official calls.

In constitutional law, it doesn't really matter what the Constitution says. What matters is how the courts call it (aided by arguments and theories that come to them from the academy, either directly or through their clerks).

Else no one would take seriously the idea that even though the Constitution mentions capital crimes twice, capital punishment is unconstitutional--an idea that most of Obama's possible judicial appointees probably agree with.

Invis: I see this talking point yesterday by a couple of Republicans, and it doesn't really get any more intelligent the more you repeat it...BECAUSE WE HADN'T CAUGHT HIM YET.

I see I'll have to simplify it for you: if "our system of justice is strong enough to deal with terrorists" then why didn't the 1998 indictment prevent him from orchestrating 9-11?

If anything, its the reverse. Clinton took a pass on catching Osama because we didn't believe we could make our case in court. Obama wants to repeat the mistakes of the past, "fighting" terrorism with criminal investigations.

garage mahal said..."Being able to challenge your detention in front of a neutral judge will result in lost cities? ... [C]an someone connect the dots on exactly how this could happen ... ?"

Boumediene requires that detainees be given access to either habeas itself or an adequate substitute, either of which must irreducibly provide for review by an Article III court with "the power to order the conditional release of an individual [the court thinks is] unlawfully detained...." Slip op. at 50. A judge who can order release may order release. A wilfull judge who is not very good at their job, but who has the redeeming virtue of being implaccably hostile to the administration and the war on terror, may decide either that the evidence the government presents is too thin, or reject the entire notion that their detention is lawful. (We have plenty of people who regard the war on terror as a law enforcement problem, including a candidate for President, and who seem to think that holding prisoners of war without criminal charges is itself "unlawful detention" - so this is hardly unrealistic.)

Prisoners of war are detained for the duration of hostilities because if they escape or are released, they will rejoin the fight. That has already happened in this war, as Justice Scalia's dissent in Boumediene notes. See dissenting opinion at 3-4. Release of prisoners will not lead directly and inevitably to "lost cities," but it will almost certainly lead to the restoration of greater manpower to an enemy determined to attack us, and therefore, to more attacks. Lost cities are a worst-case scenario of the kind of attack that our enemy, including the detainees, would like to visit upon us. Detainees who are released and are therefore able to rejoin the fight could participate in such an attack.

That might not be a convincing causal chain, but it's not a difficult trail of dots to follow, I would have thought.

For my part, I would be happy with letting detainees challenege the factual predicate for their detention, but only if it is absolutely, clearly, and authoritatively provided by law that if they are determined to have been correctly designated an illegal combatant, that is legally sufficient to detain them. This is not a law enforcement exercise, it is a war. They are prisoners of war, and should be treated as such (which is not the way that they have thusfar been treated, I acknowledge). They should be detained for the duration of hostilities. And nothing in the Constitution prevents this, the founders having been intimately familiar with the taking and holding of prisoners of war, given that virtually all of them had recently and personally participated in a war with the British where both sides took and kept PoWs.

"We do not need to choose between our most deeply held values, and keeping this nation safe."

Why, yes, we do, although the above does make a very snappy sound bite. Several detainees have been released because their imprisonment was so gosh darn unfair and have returned to jihad. However, since most of the people killed by the released Gitmo Constitutional victims were mostly Afghan or Paki or US military, Obama could be technically correct that our "nation" is still safe. Up to now, that is.

Being able to challenge your detention in front of a neutral judge will result in lost cities? I see this mentioned every time this subject comes up - can someone connect the dots on exactly how this could happen for this old dhimmi?.

Well, you could look at it this way.

People who are determined to rob your house and who are known to be robbers are deterred by being arrested, detained and kept away from your house. When they are released without any consequences after their initial arrest and allowed free access to your house, they will feel even more at liberty to rob you and will be able to recruit helpers to commit their crimes. Since there are no repercussions to stealing your stuff and in fact they are treated as the victims not the perpetrators by the legal system, there is no deterrent. Ergo....your stuff is stolen and you have no protections.

Substitute fanatical religious nutjobs with a martyrdom complex who have access to some pretty bad weaponry who have clearly stated that they want to destroy our civilization, our country (not to mention our persons) and who have made attempts to do so in the past for the known robbers.

Will it happen? I would give a better than 60% chance given the latest developments from our "judicial" system. Better odds than playing the lottery wouldn't you say?

PogoWe know there are terrorists in the world who wish us harm. My question is how giving a suspect the right to challenge their detention to a neutral judge after being picked up (the vast majority not even apprehended by U.S. forces) will result in mass death and destruction of U.S cities.

Simon: Boumediene requires that detainees be given access to either habeas itself or an adequate substitute, either of which must irreducibly provide for review by an Article III court with "the power to order the conditional release of an individual [the court thinks is] unlawfully detained...."

Simon, three questions:

1) Does this mean the STA Team in Afganistan that captured "Omar" must return to states to testify?

2) Does this mean Intel agencies must release classified info to the defense as part of discovery?

3) If the answer to 1 or 2 is "yes", does this mean Omar would be released if those conditions are not met?

"My question is how giving a suspect the right to challenge their detention to a neutral judge after being picked up (the vast majority not even apprehended by U.S. forces) will result in mass death and destruction of U.S cities?"

Again, willfully obtuse.Judge: Mohammed, you are free to go, as the soldier you were shooting at failed to read you your rights.

Mohammed Thank you, dhimmi. See you in hell.

CNN: Just 5 days after his release, Gitmo detainee Mohammed Mohammed killed 500 shoppers in the Mall of America today as bnlah blah blah.

You see a difference between apprehending a taliban whacko caught red-handed firing a RPG at a soldier, and some Afghani turned in to us for what could be any number of reasons? We know the over half the prisoners that entered GTMO since 2001 have been released, and the vast majority we're not even apprehended by US forces. What about someone snatched up in Germany, or even RFK? We're not at war with either.

You mentioned our founders, and it seems to me they thoroughly rejected the idea of dungeons in favor of due process, and we should at minimum allow a suspect to challenge their very detention.

We know there are terrorists in the world who wish us harm. My question is how giving a suspect the right to challenge their detention to a neutral judge after being picked up (the vast majority not even apprehended by U.S. forces) will result in mass death and destruction of U.S cities.

Garage, you’re seeing one tree of the argument versus the forest. The fundamental issue is the overall view of Obama and his ilk viewing this as a law enforcement matter versus a war, an assymetrical one but a war nonetheless. I’m tired of repeating it but alas, we treated the 1993 WTC bombing as a law enforcement matter, tried, convicted and jailed most who were involved. The end result was not a decrease in terrorist recruitment but subsequent terrorist attacks on US interests abroad, Khobar Towers, USS Cole, US African embassies up to 9/11.Up to that point as Fen has repeatedly pointed out, Osama declared war on the US and the US leveled an indictment on him. Osama continued to plot and attack the US while our President plotted his next poontang conquest. Now if that isn’t clear, what should be clear is that Clinton administration treated terrorism as a law enforcement matter and a fat lot of good it did us. Bush has treated it as a war and there are a shit ton of dead jihadists and has reduced Osama putting out a semi-annual scratchy audio tape the NSA has to listen to using some 20 year old Sony Walkman. Now if we want to go back to the Clinton method, I think you can rest assured that since the FBI has no jurisdiction beyond our borders, you may see a WMD go off in some major city. So Akbar being cross examined by some Sam Waterstone wannabe is just one problem with the whole argument. I’ll go so far as to agree with Freder and simply try them under the USCMJ, glean every bit of intel from them and then stand them up before a firing squad just like we did the Grief commandos.

Can you source this for me? With a breakdown of US, NATO, etc captures? Because it seems as if you mean to imply any capture [other than US] was based on malice or incompetence.

[...]

Here is the shape of things to come [ie, terrorist mastermind released on hyper-technicalities]:

"Yesterday in the U.K., the Special Immigration Appeals Commission ordered the Ministry of Justice to release on bail Abu Qatada, the highest ranking al-Qaeda affiliate they currently hold -- and a direct clerical counsel to Osama bin Laden himself.

So why are they releasing him? As near as I can make out, Qatada was being held on an immigration charge:

He is a Jordanian, and he was tried and convicted in absentia (twice!) in a Jordanian court for "conspiracy to carry out bomb attacks on two hotels in Amman in 1998, and providing finance and advice for a series of bomb attacks in Jordan planned to coincide with the Millennium."

But because he had these two convictions pending, which presumably could result in a sentence of death in Jordan, he could not be deported back to that country... because the U.K. refuses to recognize the validity of executions.

Therefore, reasoned the Special Immigration Appeals Commission, since he could not be deported, that meant the entire immigration case against him collapsed.

Therefore, he could not be held indefinitely without a criminal charge.

But the moment Qatada was charged with a regular civilian crime, the judges told the Ministry that they had to offer Abu Qatada bail"

We know the over half the prisoners that entered GTMO since 2001 have been released

I'm not sure how this is supposed to support your point. Seems to me it would prove that the system's working to weed out those are innocent, or at least, whose guilt is uncertain. People have been/are being checked out and released.

I would guess that he's only going as far as the Supreme Court and making the extension to Guantanamo, but it would be nice to pin him down.

Well -it also would be nice to pin down the majority on that....

Here's Scalia's opinion on what they have actually done when they upended the findings in Eisenstrager-which they claimed was different because they were not intent on a long term "occupation" and answerable to our "Allies"-

But so long as there are some places to which habeas does not run--so long as the Court's new "functional" test will not be satisfied in every case--then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.

We know the over half the prisoners that entered GTMO since 2001 have been released,

I would add that you are jumping to the wrong conclusion. You imply they were released because they were found "not guilty", but many were released simply because they were deemed to no longer be a threat [for a variety of reasons].

I'm not sure of this point, but I think there is a subtle distinction between rights and privileges - there is a specific process to "suspend" the privilege of habeas corpus, one which has not been attempted under the war on terror. I think I am correct in my history in that the writ was suspended during the civil war.

At a minimum, the detainees need a process whereby they can challenge their detention. In my criminal law practice, I've filed habeas petitions arguing that the DOC's decision to revoke probation was arbitrary and capricious. Usually, I lose. Let's just say the hearings are not long. I know my experience isn't directly analogous, but I think the process the court envisions is somewhat similar in that there is a need for at least some factual basis for detaining someone - even a foreigner, indefinitely.

On a side note, I believe that there were lots of U.S. dollars being thrown about early on to convince Iraqis and others to tattle on (alleged) terrorists, so there is a real possibility that some of the detained were not involved in terrorism.

Having some form of a hearing certainly does not mean the detainee get access to national security documents. I assume there will some in camera review process for those issues.

Primarily, I think Boumediene is a separation of powers case. I am guessing the majority was somewhat irked about the Article II arguments that have been claimed by the administration all along, which, in my humble opinion, were a pretty good stretch.

Fen, As to question three, the upshot seems to be that if the judge is not convinced that the government has proven its case, yes, he or she could order release. I think the answer to questions one and two is left unresolved and unclear by Boumediene; at least, the answers aren't apparent to me from the case. With that said, some speculation is possible. I think that the answer to question one is "not necessarily." Omar will be able to call witnesses, and it remains to be decided whether that includes the team that captured him. Likewise, the government will be able to call witnesses, presumably including the team that captured Omar, but whether it will feel it necessary to do so remains to be seen. And in all events, I suspect that they could testify by deposition or video link without need to physically return to the states.

1. This guy taught constitutional Law and UC? Kingfield he ain't. Somebody deserves a refund.

2. DBQ, to continue and elaborate. The biggest problem with the criminal law and deterence approach is that most of these guys can't be deterred, because they are seeking their one big martyr event. Threatening the full power of the US justice system AFTER a suicide attack makes them giggle.

3. Quayle, how would the Brits react? Well their courts just released a radical Imam who falsified his way into Britain, preaches sedition, was convicted of crimes in Jordan, can't be extradited because even though the Jordanians say they wont torture him, some judge says they are lying, and the EU Human rights code doesnt allow torture. So there is nothing to hold him on in Britian, he could be deported, but deporting him , might put him in the hands of somebody who doesnt like him, so they just pit him in a house and pay him welfae payments to preach sedition. (yeah, I meant that to be a run on sentence. it's all so absurd)

so Obama likely thinks we should be a civilized as the Brits. Just as long as the 3 half way houses for the Gitmo boys are in NYC, Chi-town and SF, I'll be ok with that approach :)

4. bottom line. This old soldier thinks that a law enforcement approach to terrorism is bat sh_t crazy. Law enforcement is fundamentally reactive. you cant act till a crime has been committed. and you can't try somebody that suicided. Now with nukes in play, that roll of the dice is one I dont want to take, with my wife a half mile downwind of the White House. I know what zone 1 looks like after a 10kt surface burst.

You really should consider blogging. I would happily read it. But on to the point.

For all this nonsense about liberals' being more "nuanced" thinkers, they display a shocking lack of basic logic when it comes to their firmly held religious tenet that the government is evilly holding innocents at Gitmo. Recall that we are talking about a government that doesn't even have the testicles to charge Lindh with treason, even though hundreds of soldiers were witness to his treason (that would satisfy the Constitutional requirement for conviction), not to mention all of his taliban pals. Ditto for Lynne Stewart, who not only was just as clearly guilty of treason, but has happily and proudly proclaimed that she was guilty of treason and gets paid for it, and ditto for Padilla.

Also note that as many here have commented, in the past, such criminals would have been shot -- oh, but not by this administration, because they don't have the gumption. And had they been lined up and shot, none of this whining about Gitmo would be an issue, would it?

I would also like to point out that while Clinton was unable to capture Bin Laden in the two years remaining in his term, W. was unable to capture Bin Laden in the seven+ years he's been President. Thus W. is roughly four times the weeny Clinton was.

I would also like to point out that while Clinton was unable to capture Bin Laden in the two years remaining in his term, W. was unable to capture Bin Laden in the seven+ years he's been President. Thus W. is roughly four times the weeny Clinton was.

I'll consider that argument when you show me evidence that someone had bin Laden in their control and offered to give him over in the Bush administration.

Rather than end up with *three* comments, I'll ask the question I started to ask: why is it when Rush asks a series of questions designed to elicit the impression that Obama is being unclear and that what he's saying at least could be reasonably interpreted as suggesting that these prisoners would have the full rights of individuals in US courts, and you agree Obama was being unclear, do you feel that's unreasonable?

Second question, which is a real live lawyer question: consider the scenario Rush talks about: the accused unlawful combatants, now granted the right of habeas, pursue that right in a US Court. What limitations on their rights in US Courts are supported by statute, and given this SC decision, do you think these statute would be upheld? Why? If they were not upheld, what would the consquence be? Wouldn't it be that they would receive all the privileges etc?

This is a seriously question: it's not necessarily meant to cause people to infer that you perhaps were more pleased with the opportunity to snark at Rush that you were in considering his point.

former law student has left a new comment on the post "What "privileges" would Barack Obama give to the G...":"[If prisoners of war are detained for the duration of hostilities because if they escape or are released, they will rejoin the fight, do] you support Hamas's continued detention of Israeli Cpl. Gilad Shalit?"

The premise of the question makes what strikes me as either a category error or a quite novel claim -- viz., that a private organization can take and hold prisoners of war. I know no precedent for that. Historically, hasn't it been that only nation-states have been deemed competent to do that? Because Hamas is a private actor rather than a nation-state, it seems to me that its detention of Cpl. Shalit is simple kidnapping, not the taking of a prisoner of war. If Hamas had legitimately achieved political power in Lebanon, however, and committed the state of Lebanon to a declared war with Israel, in pursuance of which it had detained Cpl. Shalit as a prisoner of war, that could conceivably be within the traditional compass of the taking and keeping of PoWs.

FLS:I would also like to point out that while Clinton was unable to capture Bin Laden in the two years remaining in his term, W. was unable to capture Bin Laden in the seven+ years he's been President. Thus W. is roughly four times the weeny Clinton was.

Let's see, World Trade Center gets bombed in '93 Clinton is president from 1993 to 2001....How long is that?

Iraqis aren't held in Guantanamo (unless they were captured in Afghanistan). All Iraqis detainees are held in Iraq under an entirely different structure than the Guantanamo "enemy combatant" designation.

So whatever we're doing to find terrorists in Iraq, it has no bearing on the liklihood that we're holding innocent civilians in Guantanamo.

FLS, could you please enlighten me as to just when was the several American soldiers who were captured in Iraq taken before a tribunal and just how has their respective POW status worked out? Did I just miss their hearings? Each were leitimate combatants and entitled to GC protections as they did meet the tests. Each of the US soldiers certainly carried their GC identification cards on their person. Might I inquire as to why Human Rights watch hasn't bothered to investigate the treatment of these captured soldiers?

Since one party has clearly not complied to the GC then why should we now feel the need? Might I suggest that Rule 303 now be applied.

Now, I'm just a lowly law-layperson, but I thought one big purpose in the tribunal procedures that Congress put together (and that the SCOTUS just shot down as inadequate) was to keep detainees out of the US judicial system. You see, the way I look at it, bringing someone into the US courts but not giving them "full privileges" only serves to muddy up the judicial system and what is and isn't allowed therin. If an individual isn't to be given "full privileges" then they should be kept out of the US judicial system if for no other reason than to preserve the integrity of that system.

Obama is imprecise about everything he says, and the MSM lets him get away with it. That is the secret of his success.

Regarding the detainees at GITMO, even if they are not gulity of any crime, it seems to me that they should be held until they no longer pose a threat. According to news reports about 30 of those who have been released have resumed their fight against us. When I was a boy there was a prisoner of war camp where my elderly uncles worked as guards. The Germans in those camps weren't accused of crimes, but they were not released until the war was over. It appears to me that many like Obama regard the Constitution as a suicide pact.

as callous as this may sound, isn't it so that the people who want to handle this as a law enforcement exercise live in the cities that are the prime targets for the next attack? And so, isn't this a self-correcting problem, for the most part?

Hey Simon, for the sake of ten just men will you save the city? You're tougher than God, man.

amba said..."[Simon said 'as callous as this may sound, isn't it so that the people who want to handle this as a law enforcement exercise live in the cities that are the prime targets for the next attack? And so, isn't this a self-correcting problem, for the most part?'] Hey Simon, for the sake of ten just men will you save the city? You're tougher than God, man."

If it were up to me, Amba, yes I would - but a whole bunch of the folks living in those cities keep telling us that they don't believe they're in any danger and keep blackballing us and saying how how we're brownshirts and fascists because we want to take measures that may save their asses. At a certain point, sympathy starts to run cold, you know? At what point do you quit trying to help someone who doesn't want help and who brands you as unamerican for even trying?

garage mahal said... PogoWe know there are terrorists in the world who wish us harm. My question is how giving a suspect the right to challenge their detention to a neutral judge after being picked up (the vast majority not even apprehended by U.S. forces) will result in mass death and destruction of U.S cities.

The problem is you have criminal justice trained and experienced lawyers now put in a position of seeing what crime and enemy soldier has done that could justify holding them under habeas. Under those rules, we would have had no criminal case against almost all the of the 400,000 Nazis held in the US. They comitted no crime - unless you think that volunteering or being involuntarily drafted (most of the soldiers who technically only 2-3% had Nazi Party membership) and serving your nation or cause under arms is a criminal offense.

Being caught with a machine gun out of uniform is not a crime - it is a violation of rules that will lose you POW status and make you subject to execution, but not a crime. Nuremberg did not consider Germans they caught who had gone past enemy lines and did spying or sabotage (inc. blowing up civilians) as war criminals, but as heroes. Just as Allies considered our own OSS agents, Soviet partisans, Yugoslav guerillas.

In a habeas hearing, what civilian crime could the German POWs be held on? The thousands of German and Italian civilians in N Africa that worked alongside troops doing vital technical and service functions then captured with the rest? The involuntary draftees. Would the judge at the time, armed with the Boumediene SCOTUS declaration of judicial civilian supremacy over the legislative and executive branches in a war and jurisdiction over all zones "controlled by US military" been forced to release them back to Germany? What if 100 of the POWs were civilians that worked for Messerschmitt on fighter plane engines, combat cannons and optic sights captured by US forces in Tunisia? Would it be proper for those "innocent civilians" to be let go back to the German aircraft works in Munich because they "committed no crime, yet are held captive??"

***************My sense is that Obama has begun digging himself a deep hole as champion of "rule of law" (meaning judicial supremacy over the other two branches in matters of war) and as spokesmen for terrorist rights. So it will be fun to see him dig deeper, and, perhaps as President, confronted by angry relatives of soldiers or US civilians killed by people he encouraged be released back into Jihad.

The larger issue, beyond Obama, love of enemy rights, and the deaths this decision may cause is the Judiciary itself.

It has grown mad with power, and like the Jewish Sanhedrin of scholars and jurists, seeks to dominate over the People, their leaders, their laws cast by representatives. They wield their Constitution as the final word. Spoken and interpreted only through them, of course. Just as the Sanhedrin sought to club down the rest of Israel with their word being final in Mosaic Law and Talmud - only to weaken Israel for conquest.

They listened so hard to hysterical Leftists saying Bush was "shredding the Constitution" while doing at best a smidgion of what Washington, Adams, Franklin, Lincoln, Wilson, FDR, Truman, JFK, LBJ, and Nixon did - that to get HIM, they did their own shredding of the Constitution and the idea of co-equal branches operating in balance.

In a better world, (right after the 2nd American Revolution)one in my dreams - matters like affirmative action, Kelo, abortion, arbitary allocation of judicial mandates, elected officials conduct of war, how long death penalty appeals would be permitted, and equal rights in child custofy hearings would be voted on by The People. Energy, public works, and environmental matters would be decided by vote on projects after reasonable debate- not by 10-30 year long "legal processes of the courts to decide all such matters". Corrupt officials would face swift and certain punishment, including one stroke of a rattan can or bullwhip for each 10,000 bucks they ripped off businesses or individuals of.Dual citizenship would be banned, no birthright citizenship for illegal spawn, and the Borders would be controlled with no lawyer allowed to intervene.

After the Revolution, if I had my say, we would resurrect the guillotine and the public would be allowed to cheer as the people that helped drag America down were drawn to their fate in tumbrels.

Tom Delay, George W. Bush, Ruth Ginsburg, David Souter, most ACLU lawyers and nearly the whole 8th Circuit. Teddy Kennedy for mass immigration and his real crimes long covered up. His son Patrick just to stop the bad seed from infecting future generations. A 1 of 10 decimation of the Yale Law School faculty where social progress and the necessary bypassing of Democracy is the agenda, not educating people on law and Justice.

(PS - Over in Europe, the Irish just did a blow to unaccountable lawyers and EUcrats by voting down the idea that the will of the people in nations no longer matters. A vote on "Enabling Acts" that said most political matters will be decided by "experts and objective professional lawyers and public servants ruling Europe from Brussels. Only in Ireland were the Ruling Elites not able to block a vote by The People after the Fiasco of the Dutch and French public voting down the proposed EU Constitution. And the Irish, who fought centuries for their freedom from other Powerful, unaccountable Euros, came through.)

"Being able to challenge your detention in front of a neutral judge will result in lost cities? I see this mentioned every time this subject comes up - can someone connect the dots on exactly how this could happen for this old dhimmi?"

How will the detainee challenge the detention? By referencing and using the evidence that the US has, which might include highly classified and/or sensitive information. So then we're in a situation where the information might be valuable enough that it cannot be revealed.

In which case the detainee is set free to kill again.

Another possibility is that the evidence is challenged on the basis of the current rules. Is there a formal *chain of evidence*? How is this tracked? Without such a chain could it be argued that the evidence could be tainted?

What if there isn't any physical evidence but only testimony? By a US soldier? Who died in subsequent action? Now there's no witness.

If Obama gets elected president, within the first few days in the oval office, he's going to call the Justice department about the detainees in Guantanamo. Someone will show up with a bunch of spooks. They'll drop a stack of folders on President Obama's desk. He'll start reading. He'll shit his pants and that's the last we'll hear of putting the detainees on trial.

(At one point, even Obama will surely ask; "Why didn't we just shoot these bastards?" To which the correct response would be: "Because of you and your liberal friends.")